(HC) Perez v. Hartley, No. 1:2008cv01665 - Document 16 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS recommending that the 1 Petition for Writ of Habeas Corpus be GRANTED and the Clerk of Court be DIRECTED to Enter Judgment for Petitioner, signed by Magistrate Judge John M. Dixon, Jr on 6/18/2010. Referred to Judge O'Neill. Objections to F&R due by 7/21/2010. (Jessen, A)
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(HC) Perez v. Hartley Doc. 16 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 RICKY PEREZ, 8 ) ) ) ) ) ) ) ) ) ) Petitioner, 9 v. 10 J.D. HARTLEY, 11 Respondent. 1:08-CV-01665 LJO JMD HC FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS OBJECTIONS DUE WITHIN THIRTY (30) DAYS 12 13 14 Petitioner Ricky Perez (“Petitioner”) is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 15 PROCEDURAL HISTORY 16 Petitioner is currently in the custody of the California Department of Corrections and 17 Rehabilitation pursuant to Petitioner’s entry of a plea of guilty to charges of second degree murder 18 with a firearm enhancement in 1982. The trial court sentenced Petitioner to a term of fifteen years to 19 life in prison. (Pet. at 2; Answer at 1.) 20 Petitioner is not challenging his conviction in this instant action; rather, Petitioner challenges 21 the denial of his parole by the California Board of Parole Hearings (the “Board”), whom he appeared 22 before in November 2006. (Pet. at 2.) Petitioner contends that the Board violated his constitutional 23 rights when they denied him parole. (Pet. at 5-6.) 24 On June 19, 2007, Petitioner filed a petition for writ of habeas corpus with the Santa Clara 25 County Superior Court challenging the Board’s denial of parole. (See Answer Ex. 1.) The Superior 26 Court issued a reasoned opinion denying the petition on August 27, 2007. (See Pet. Ex. C.) 27 28 Petitioner also filed petitions for writ of habeas corpus with the California Court of Appeal and the California Supreme Court. (Answer Exs. 3, 5.) The California Court of Appeal and U .S. D istrict C ourt E. D . C alifornia 1 Dockets.Justia.com 1 Supreme Court issued summary denials of the petitions.1 (See Pet. Exs. D, E.) 2 On October 23, 2008, Petitioner filed the instant federal petition for writ of habeas corpus.2 3 Respondent filed a response to the petition on June 24, 2009. Petitioner filed a traverse to the 4 reply on July 15, 2009. 5 FACTUAL BACKGROUND 6 The facts of the commitment offense were considered by the Board in determining whether 7 Petitioner was suitable for parole and are thus relevant to the Court’s inquiry into whether the State 8 court’s decision upholding the Board’s denial of parole was objectively unreasonable. See Cal. Code 9 Regs., tit. 15, § 2402(c)(1). The Board incorporated into the record a summary of the offense which 10 had been taken from the probation officer’s report, stating: 11 Perez and the victim were seen by several witnesses and a neighbor to be involved in an argument. Perez was seen hitting the victim several times and dragging her to the side of her home. Contact was made with the victim’s daughter, who upon arriving home, found her mother’s body lying next to the driveway. The daughter stated she observed a male individual whom she recognized as Ricky Perez, leaving the area. During the course of the investigation, Perez arrived at the scene. He had what appeared to be recent lacerations on his face and hands. When the officers questioned him, they found several discrepancies in his statement. The officers arrested Perez and charged him with the offense. Perez admitted engaging in a verbal argument with the victim earlier in the evening. However, he denied killing her. 12 13 14 15 16 (Pet. Ex. A, Transcript of Parole Hearing, at 8.) 17 Petitioner admitted that the probation officer report was accurate. (Id.) Petitioner’s attorney 18 at the hearing noted that Petitioner admitted his commission of the crime in 1992. (Id. at 9.) 19 Petitioner attributed his actions to his use of drugs. (Id.) Petitioner was eighteen years old at the 20 time of the crime. (Id. at 12.) 21 DISCUSSION 22 I. Jurisdiction 23 A person in custody pursuant to the judgment of a State court may petition a district court for 24 relief by way of a writ of habeas corpus if the custody is in violation of the Constitution, laws, or 25 treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 26 27 1 Respondent admits that Petitioner has exhausted his state court remedies. (Answer at 2.) 28 2 Respondent admits that the petition was timely filed. (Answer at 2.) U .S. D istrict C ourt E. D . C alifornia 2 1 U.S. 362, 375 n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by 2 the United States Constitution and Petitioner is currently incarcerated at Avenal State Prison, which 3 is located in Kings County. (Pet. at 2.) As Kings County falls within this judicial district, 28 U.S.C. 4 § 84(b), the Court has jurisdiction over Petitioner’s application for writ of habeas corpus. See 28 5 U.S.C. § 2241(d) (vesting concurrent jurisdiction over application for writ of habeas corpus to the 6 district court where the petitioner is currently in custody or the district court in which a State court 7 convicted and sentenced Petitioner if the State “contains two or more Federal judicial districts”). 8 II. 9 ADEPA Standard of Review On April 24, 1996, Congress enacted the Anti-terrorism and Effective Death Penalty Act of 10 1996 (“AEDPA”), which applies to all petitions for a writ of habeas corpus filed after the statute’s 11 enactment. Lindh v. Murphy, 521 U.S. 320, 326-327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 12 (9th Cir. 1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), overruled on other 13 grounds by Lindh, 521 U.S. 320 (holding AEDPA only applicable to cases filed after statute’s 14 enactment)). The instant petition was filed in 2008 and is consequently governed by the provisions 15 of the AEDPA. See Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Thus, the petition “may be granted 16 only if [Petitioner] demonstrates that the state court decision denying relief was ‘contrary to, or 17 involved an unreasonable application of, clearly established Federal law, as determined by the 18 Supreme Court of the United States.’” Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) (quoting 28 19 U.S.C. § 2254(d)(1)), overruled in part on other grounds, Hayward v. Marshall, 603 F.3d 546, 555 20 (9th Cir. 2010) (en banc); see Lockyer, 538 U.S. at 70-71. 21 Title 28 of the United States Code, section 2254 remains the exclusive vehicle for 22 Petitioner’s habeas petition as Petitioner is in the custody of the California Department of 23 Corrections and Rehabilitation pursuant to a state court judgment. See Sass v. California Board of 24 Prison Terms, 461 F.3d 1123, 1126-1127 (9th Cir. 2006) overruled in part on other grounds, 25 Hayward, 603 F.3d at 555. As a threshold matter, this Court must “first decide what constitutes 26 ‘clearly established Federal law, as determined by the Supreme Court of the United States.’” 27 Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly 28 established Federal law,” this Court must look to the “holdings, as opposed to the dicta, of [the U .S. D istrict C ourt E. D . C alifornia 3 1 Supreme Court's] decisions as of the time of the relevant state-court decision.” Id. (quoting 2 Williams, 592 U.S. at 412). “In other words, ‘clearly established Federal law’ under § 2254(d)(1) is 3 the governing legal principle or principles set forth by the Supreme Court at the time the state court 4 renders its decision.” Id. Finally, this Court must consider whether the state court’s decision was 5 “contrary to, or involved an unreasonable application of, clearly established Federal law.” Lockyer, 6 538 U.S. at 72, (quoting 28 U.S.C. § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas 7 court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the 8 Supreme] Court on a question of law or if the state court decides a case differently than [the] Court 9 has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413; see also Lockyer, 538 10 U.S. at 72. “Under the ‘unreasonable application clause,’ a federal habeas court may grant the writ if 11 the state court identifies the correct governing legal principle from [the] Court's decisions but 12 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. 13 “[A] federal court may not issue the writ simply because the court concludes in its independent 14 judgment that the relevant state court decision applied clearly established federal law erroneously or 15 incorrectly. Rather, that application must also be unreasonable.” Id. at 411. A federal habeas court 16 making the “unreasonable application” inquiry should ask whether the State court's application of 17 clearly established federal law was “objectively unreasonable.” Id. at 409. 18 Petitioner bears the burden of establishing that the state court’s decision is contrary to or 19 involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 20 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth 21 Circuit precedent remains relevant persuasive authority in determining whether a state court decision 22 is objectively unreasonable. Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003) (“While only the 23 Supreme Court’s precedents are binding on the Arizona court, and only those precedents need be 24 reasonably applied, we may look for guidance to circuit precedents”); Duhaime v. Ducharme, 200 25 F.3d 597, 600-01 (9th Cir. 1999) (“because of the 1996 AEDPA amendments, it can no longer 26 reverse a state court decision merely because that decision conflicts with Ninth Circuit precedent on 27 a federal Constitutional issue....This does not mean that Ninth Circuit caselaw is never relevant to a 28 habeas case after AEDPA. Our cases may be persuasive authority for purposes of determining U .S. D istrict C ourt E. D . C alifornia 4 1 whether a particular state court decision is an ‘unreasonable application’ of Supreme Court law, and 2 also may help us determine what law is ‘clearly established’”). Furthermore, the AEDPA requires 3 that the Court give considerable deference to state court decisions. The state court's factual findings 4 are presumed correct. 28 U.S.C. § 2254(e)(1). A federal habeas court is bound by a state's 5 interpretation of its own laws. Souch v. Schaivo, 289 F.3d 616, 621 (9th Cir. 2002). 6 The initial step in applying AEDPA’s standards is to “identify the state court decision that is 7 appropriate for our review.” Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). Where more 8 than one State court has adjudicated Petitioner’s claims, a federal habeas court analyzes the last 9 reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) for the presumption that 10 later unexplained orders, upholding a judgment or rejecting the same claim, rests upon the same 11 ground as the prior order). Thus, a federal habeas court looks through ambiguous or unexplained 12 state court decisions to the last reasoned decision to determine whether that decision was contrary to 13 or an unreasonable application of clearly established federal law. Bailey v. Rae, 339 F.3d 1107, 14 1112-1113 (9th Cir. 2003). Here, the Santa Clara County Superior Court, the California Court of 15 Appeal, and the California Supreme Court reached the merits of Petitioner’s claims. As both the 16 California Court of Appeal and the California Supreme Court summarily denied Petitioner’s claims, 17 the Court looks through those decisions to the last reasoned decision; namely, that of the Santa Clara 18 Superior Court. See Ylst v. Nunnemaker, 501 U.S. at 804. 19 III. 20 Review of Petitioner’s Claims The petition for writ of habeas corpus sets forth four grounds for relief: (1) Petitioner’s right 21 to due process of the law was violated as the Board’s denial was not supported by any evidence of 22 current dangerousness; (2) the Board mischaracterized Petitioner’s psychological evaluation; (3) the 23 Board violated Petitioner’s due process rights when they ignored evidence of unsuitability; and (4) 24 Petitioner has spent an excess of thirteen years in prison and should be granted release without any 25 parole. 26 \\\ 27 \\\ 28 \\\ U .S. D istrict C ourt E. D . C alifornia 5 1 A. 2 The Court analyzes a claim that a petitioner’s due process rights have been violated in two 3 steps. “‘[T]he first asks whether there exist a liberty or property interest which has been interfered 4 with by the State; the second examines whether the procedures attendant upon that deprivation were 5 constitutionally sufficient.’” Sass, 461 F.3d at 1127. The United States Constitution does not, by 6 itself, create a protected liberty interest in a parole date. Jago v. Van Curen, 454 U.S. 14, 17-21 7 (1981). Respondent argues that Petitioner does not have a federally protected liberty interest in 8 parole. The Ninth Circuit Court of Appeals has recognized that “[i]f there is any right to be release 9 on parole, or to release in the absence of some evidence of future dangerousness, it has to arise from Ground One: Due Process in Denial of Parole 10 substantive state law creating a right to release.” Hayward, 603 F.3d at 555. The Ninth Circuit 11 further recognized that “[t]here is no general federal constitutional ‘some evidence’ requirement for 12 denial of parole, in the absence of state law creating an enforceable right to parole.” Id. at 559. The 13 Hayward court’s finding, that there exists no free standing federal due process right to parole or right 14 to some evidence of current dangerousness, contained the consistent and continual caveat that state 15 law may in fact give rise to federal protection for those rights. As later noted by the Ninth Circuit, 16 “state created rights may give rise to liberty interests that may be enforced as a matter of federal 17 law.” Pearson v. Muntz, __ F.3d __, 2010 WL 2108964, * 2 (9th Cir. 2010) (citing Wilkinson v. 18 Austin, 545 U.S. 209, 221 (2005)). The Pearson court found that, “Hayward necessarily held that 19 compliance with state requirement is mandated by federal law, specifically the Due Process Clause” 20 as “[t]he principle that state law gives rise to liberty interests that may be enforced as a matter of 21 federal law is long-established.” Id. 22 As noted by the Ninth Circuit in Hayward, the logical next question is whether California’s 23 parole scheme gives rise to a liberty interested enforced as a matter of federal law. The Ninth Circuit 24 has definitively concluded that “California has created a parole system that independently requires 25 the enforcement of certain procedural and substantive rights, including the right to parole absent 26 ‘some evidence’ of current dangerousness.” Pearson, __ F.3d __, 2010 WL 2108964, * 4 (citing 27 Hayward, 603 F.3d at 562); see also Cooke v. Solis, 2010 WL 2267018, * 6-7 (9th Cir. 2010) (noting 28 that “California’s ‘some evidence’ requirement is a component of the liberty interest created by the U .S. D istrict C ourt E. D . C alifornia 6 1 parole system of that state”). 2 Consequently, the inquiry that a federal habeas court must undertake in determining whether 3 the denial of parole comports with the requirement of federal due process is “whether the California 4 judicial decision approving the governor’s [or parole board’s] decision rejecting parole was an 5 ‘unreasonable application’ of the California ‘some evidence’ requirement, or was ‘based on an 6 unreasonable determination of the facts in light of the evidence.’” Hayward, 603 F.3d at 563 7 (quoting 28 U.S.C. § 2254(d)(1)-(2)) (footnotes omitted). As the Ninth Circuit recently observed in 8 Cooke: 9 10 11 Under California law, “the paramount consideration for both the Board and the Governor” must be “whether the inmate currently poses a threat to public safety and thus may not be released on parole,”[citation], and “the facts relied upon by the Board or the Governor [must] support the ultimate decision that the inmate remains a threat to public safety. 12 Cooke, 2010 WL 2267018, *7 (quoting In re Lawrence, 44 Cal.4th 1181, 1210, 1213 (2008)); see 13 also Cal. Code Regs., tit. 15, § 2402(a) (“[I]f in the judgment of the panel the prisoner will pose an 14 unreasonable risk of danger to society if released from prison,” the prisoner must be found unsuitable 15 and denied parole). The California Supreme Court in Lawrence held that, “[t]he relevant 16 determination for the Board and the Governor is, and always has been, an individualized assessment 17 of the continuing danger and risk to public safety posed by the inmate.” Id. at 1227 (noting that 18 “mere recitation of the circumstances of the commitment offense, absent articulation of a rational 19 nexus between those facts and current dangerousness, fails to provide the required “modicum of 20 evidence” of unsuitability”). Thus, the dispositive inquiry now before this Court is “‘whether the 21 identified facts are probative to the central issue of current dangerousness when considered in light 22 of the full record before the Board or the Governor.’” Cooke, 2010 WL 22670108, *7 (quoting In re 23 Lawrence, 44 Cal.4th at 1221) (emphasis in original). 24 1. State Court Decision 25 Here, the Superior Court of California, Santa Clara County, was the last State court to have 26 issued a reasoned opinion in Petitioner’s case. In that decision, the Superior Court stated, “[i]n this 27 case, because there is ‘some evidence’ that the motive for the crime was inexplicable or very trivial 28 in relation to the offense, there is unsuitability under the ‘detailed standards.’” (Pet. Ex. C) (citing In U .S. D istrict C ourt E. D . C alifornia 7 1 re Dannenberg, 34 Cal.4th 1061, 1096 n. 16 (2005)). The Court finds this decision to be an 2 objectively unreasonable application of the California some evidence standard. As the Ninth Circuit 3 noted, “courts in this circuit...need only decide whether the California judicial decision approving the 4 governor’s [or Board’s] decision rejecting parole was an ‘unreasonable application’ of the California 5 ‘some evidence’ requirement, or was ‘based on an unreasonable determination of the facts in light of 6 the evidence.’” Hayward, 603 F.3d at 562-63. As the California Supreme Court rejected the very 7 test applied by the Santa Clara Superior Court, the Court finds the Superior Court’s decision to be an 8 objectively unreasonable application of California’s some evidence standard. See In re Lawrence, 44 9 Cal.4th at 1210 (concluding “that current dangerousness (rather than the mere presence of a statutory 10 unsuitability factor) is the focus of the parole decision”). 11 12 2. Parole Board Decision3 The finding that the State court’s decision was objectively unreasonable does not end a 13 federal habeas court’s inquiry. See Butler v. Curry, 528 F.3d 624, 641 (9th Cir. 2008) (citing 28 14 U.S.C. § 2241(c)(3) in noting that a federal habeas court’s finding that state court’s decision is 15 contrary to established federal law does not end that court’s inquiry). A federal habeas court’s 16 “power to grant the writ of habeas corpus to a state inmate depends on his actually being ‘in custody 17 in violation of the Constitution or laws ... of the United States.’” Id. Thus, Petitioner is only entitled 18 to habeas corpus relief if his due process rights were violated by the lack of evidence to support the 19 Board’s denial of parole. 20 The Board noted four factors in denying Petitioner parole, relying on: (1) the circumstances 21 of the commitment offense; (2) Petitioner’s escalating pattern of criminal conduct; (3) Petitioner had 22 not yet sufficiently participated or benefitted from self-help and therapy; and (4) Petitioner’s 23 disciplinary record while incarcerated. (Pet. Ex. A at 45-46.) The Court’s review of the record 24 reveals that these factors are not probative to the central issue of current dangerousness. See Cooke, 25 2010 WL 2267018, *7. 26 27 28 3 In Ground Three, Petitioner contends that the Board violated his constitutional rights by ignoring evidence of suitability. As the crux of this argument centers on whether there was some evidence of current dangerousness, the Court incorporates this ground for relief in this section. U .S. D istrict C ourt E. D . C alifornia 8 1 The Board’s finding that Petitioner had not yet sufficiently participated or benefitted from 2 self-help and therapy is wholly without evidentiary support and contradicted by the Board’s own 3 statements. During the hearing, the Board stated, “for the record, you have received an extensive 4 amount of self-help, has [sic] been involved in an extensive amount of self-help and therapy.” (Pet. 5 Ex. A at 23) (emphasis added). The Board noted that Petitioner had been involved with Alcoholics 6 Anonymous for at least 55 months, involved in relapse prevention, anger management, life 7 management, citizenship, self-worth, anger management, coping skills, quiet moments.” (Id. at 23- 8 24.) The Board’s contradiction extends to the decision portion of the hearing when the Board found 9 that “[t]he inmate has not yet sufficiently participated and benefited [sic] from self-help and therapy 10 programs,” but then commended Petitioner for “extensive participation in A,A., [including] full 11 knowledge of the 12 Steps.” (Id. at 46-47.) The Board’s finding, that Petitioner’s participation in 12 self-help and therapy extensive but not sufficient, is both contradictory and illusory. 13 Additionally, the Court finds the Board’s reliance on Petitioner’s escalating pattern of 14 criminal conduct illusory. As noted by the Board, Petitioner had only one other incident of criminal 15 misconduct prior to the commitment offense and that incident was an arrest for drunk driving. (Id. at 16 27.) First, the Court notes that California regulations list previous record of violence as an 17 unsuitability factor. Cal. Code Regs., tit. 15, § 2402(c)(2) (stating, “[t]he prisoner on previous 18 occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner 19 demonstrated serious assaultive behavior at an early age” as a circumstance tending to show 20 unsuitability). By the regulation’s own statement, Petitioner’s drunk driving arrest would not 21 constitute a record of violence as there was no actual victim. Additionally, the drunk driving arrest 22 occurred prior to Petitioner’s commitment offense which means that twenty-four years had lapsed 23 between the drunk driving arrest and the parole hearing. In light of Petitioner’s participation in 24 Alcoholics Anonymous, Petitioner’s drunk driving incident from almost a quarter of a century ago 25 does not constitute evidence of Petitioner’s current dangerousness. 26 \\\ 27 \\\ 28 \\\ U .S. D istrict C ourt E. D . C alifornia 9 1 Likewise, the Court does not find that Petitioner’s disciplinary infractions are probative. In 2 Cooke, the Ninth Circuit found that two minor non violent disciplinary infractions that occurred 3 nearly a decade prior to the parole hearing could not reasonably be viewed as evidence that the 4 habeas petitioner was a current risk to public safety. Cooke, 2010 WL 2267018, *8. Here, the Board 5 relied on six CDC 128s,4 the most recent having occurred in 1990, and one CDC 115,5 which 6 occurred in 1988. Thus, the disciplinary infractions the Board utilized for current dangerousness 7 occurred sixteen years prior to the hearing. In light of the fact that Petitioner was discipline free for 8 sixteen years, the Court finds that those infractions do not provide evidence of Petitioner’s current 9 dangerousness. 10 Similarly, the Court finds that the Board’s reliance on the commitment offense is also 11 misplaced as the identified facts of the crime do not evidence current dangerousness. In re 12 Lawrence, 44 Cal.4th at 1221 (stating “the relevant inquiry for a reviewing court is not merely 13 whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the 14 identified facts are probative to the central issue of current dangerousness when considered in light 15 of the full record”). The commitment offense occurred in 1982; thus, twenty-four years had passed 16 from the time Petitioner committed the crime to when the Board found the circumstances of that 17 crime evidenced Petitioner’s current dangerousness. As the California Supreme Court noted: 18 although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety. 19 20 21 22 In re Lawrence, 44 Cal.4th at 1214 (emphasis in original) (cited in Cooke, 2010 WL 22670128, *7). 23 The Lawrence court further held that even where the commitment offense was particularly egregious, 24 reliance on this immutable factor would violate a petitioner’s due process rights under the 25 26 27 28 4 A CDC 128 documents incidents of minor misconduct. See Cal.Code Regs., tit. 15, § 3312(a)(2); In re Gray, 151 Cal.App.4th 379, 389 (2007). 5 A CDC 115 documents misconduct believed to be a violation of law or otherwise not minor in nature. See Cal.Code Regs., tit. 15, § 3312(a)(3); In re Gray,151 Cal.App.4th at 389. U .S. D istrict C ourt E. D . C alifornia 10 1 2 3 4 5 6 7 regulations and statutes governing parole suitability in California where: evidence of the inmate's rehabilitation and suitability for parole under the governing statutes and regulations is overwhelming, the only evidence related to unsuitability is the gravity of the commitment offense, and that offense is both temporally remote and mitigated by circumstances indicating the conduct is unlikely to recur, the immutable circumstance that the commitment offense involved aggravated conduct does not provide ‘some evidence’ inevitably supporting the ultimate decision that the inmate remains a threat to public safety. In re Lawrence, 44 Cal.4th at 1191 (emphasis in original). In Lawrence, the California Supreme Court found that a commitment offense occurring over 8 thirty years prior to the Governor’s denial of parole was no longer probative of the petitioner’s 9 current dangerousness. The Lawrence court found that the intervening twenty-four years in which 10 petitioner, now age sixty-one, had rendered “the unchanging factor of the gravity of petitioner’s 11 commitment offense” no longer probative of current dangerousness and therefore could not 12 constitute some evidence. Id. at 1226. Similarly, the Court finds that the intervening twenty-four 13 years between the circumstances of the commitment offense and the parole hearing as well as 14 Petitioner’s extensive rehabilitative efforts have rendered the circumstances of the commitment 15 offense no longer probative of Petitioner’s current dangerousness. 16 In sum, the circumstances of the commitment offense “cannot, standing alone, constitute the 17 requisite evidence of current dangerousness,” Cooke, 2010 WL 2267018, *9, as “there must be more 18 than the crime or its circumstances alone to justify the Board’s or the Governor’s finding of current 19 dangerousness,” Cooke, 2010 WL 2267018, *7. Here, the Court finds the record devoid of such 20 evidence. Thus, the Court finds that Petitioner’s due process rights were violated by the Board’s 21 denial of parole and Petitioner is entitled to habeas corpus relief on this ground. 22 B. 23 Petitioner contends in his second ground for relief, that the Board mischaracterized his Ground Two: Board’s Mischaracterization of Psychological Evaluation 24 psychological evaluation and relied on the prosecutor’s opposition in denying parole and therefore 25 violated his constitutional rights. The Court notes that Petitioner is mistaken that Board found the 26 psychological evaluation unfavorable or that the Board relied on the evaluation as evidence against 27 suitability. Additionally, as the Court has found that there was not some evidence supporting current 28 dangerousness, the Court finds it unnecessary to address the Board’s mistaken reliance on the U .S. D istrict C ourt E. D . C alifornia 11 1 District Attorney’s opposition to parole. 2 C. 3 Petitioner argues that he is entitled to release without any parole restraints. (Pet. at 6.) Ground Four: Appropriate Remedy 4 Petitioner’s argument is based on the base term of imprisonment (228 months) that had been set by 5 the Board at a 2004 hearing, during which Petitioner had been found suitable for parole. Petitioner 6 alleges that as of the time he filed his habeas petition in 2008, he had served more than twenty four 7 years (288 months) in prison and received eight years (96 months) of good time credits. Thus, 8 Petitioner argues that he has served thirteen years in excess of his base term and should be released 9 without parole constraints. Respondent contends that the appropriate remedy for a violation of 10 Petitioner’s due process right is a new review by the Board, citing to Benny v. United States Parole 11 Commission, 295 F.3d 977, 984-85 (9th Cir. 2002) in support of this contention. The Court finds 12 both arguments to be erroneous. 13 “[F]ederal habeas courts have ‘broad discretion in conditioning a judgment granting habeas 14 relief’ and in ‘dipos[ing] of habeas corpus matters ‘as law and justice require.’” Milot v. Haws, 628 15 F.Supp.2d 1152, 1156 (C.D. Cal. 2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 775 (1987)); see 16 Burnett v. Lampert, 432 F.3d 996, 999 (9th Cir. 2005) (stating that federal courts “have a fair amount 17 of flexibility in fashioning specific habeas relief”); see also Sanders v. Ratelle, 21 F.3d 1446, 1461 18 (9th Cir. 1994) (noting that federal habeas court is vested with the largest power to control and direct 19 the form of judgment to be entered). Consequently, several district courts in this circuit have 20 explicitly rejected Respondent’s argument and the application of the Benny case to remedy denials of 21 parole by the Board. See, e.g., Milot, 628 F.Supp.2d at 1155-1156 (rejected the assertion that the 22 only remedy available to a habeas petition challenging the denial of parole by the Board was a new 23 parole consideration hearing and noting that California courts have rejected the same argument); 24 Ledesma v. Marshall, 658 F.Supp.2d 1155, 1187-1188 (E.D. Cal. 2009) (stating “the Benny case 25 involved delay in holding a revocation hearing for a federal parolee rather than an evidentiary 26 challenge to denial of parole under California law. Ordering the BPH to re-assess the petitioner's 27 current dangerousness based on the same evidence this federal habeas court has deemed insufficient 28 to sustain the unsuitability finding would be a futile endeavor”); Lorsno v. Ornoski, 2009 WL U .S. D istrict C ourt E. D . C alifornia 12 1 4259642, *2 (N.D. Cal. 2009) (stating, “[b]oth state and federal courts have found futility in 2 remanding a parole case for re-review by the parole board after a court sitting in habeas has found the 3 evidence insufficient to sustain an unsuitability finding,” and noting that, “Benny does not address 4 the remedy a federal court may provide after granting a habeas petition challenging the denial of 5 parole”). 6 Petitioner’s argument, that the Court impose a base term that a previous Board has 7 determined, is likewise unavailing. The Board in 2004 had found Petitioner suitable for parole and 8 thus had calculated a base term for the offense and set a parole release date. See Cal. Code Regs., tit. 9 15, § 2282(a), (d). Initially, the Court notes that Petitioner has cited no authority that suggests that 10 the 2004 determination of a base term is binding on subsequent Boards. In light of this absence of 11 authority, the Court declines Petitioner’s requests to reimpose this base term. Likewise, the Court 12 rejects Petitioner’s argument that he should have the time he has served in excess of that base term 13 be credited towards his parole period. While a prisoner who has served time in excess of his base 14 term is entitled to immediate release from prison pursuant to California regulations, the California 15 courts have found no such entitlement for a prisoner to have that additional time credited against the 16 parole period. See In re Bush, 161 Cal.App.4th 133, 142-43 (2008). 17 However, Petitioner may receive credit towards his parole period. The Court notes that 18 crediting Petitioner for the time he has served in excess of his base term toward his parole period is 19 markedly distinct from crediting Petitioner for the time he has served in excess of when his 20 constitutional rights were violated. This distinction was noted by the California Court of Appeal in 21 Bush. There, the California Court of Appeal distinguished its decision to deny credit for time served 22 in excess of the base term from a federal habeas court’s determination that the Board’s denial of 23 parole was unconstitutional, as the latter was a case where “the prisoner was not lawfully in custody 24 during the nine years following his original parole date because the rescission of that date was not 25 supported by ‘some evidence.’ [citation] The prisoner was therefore entitled to a credit of this 26 unlawful custody time against his three-year parole period.” Id. at 144-45 (emphasis added). Thus, 27 the Court recommends that Petitioner only be credited for the time he has unlawfully served; namely, 28 U .S. D istrict C ourt E. D . C alifornia 13 1 the time he has served as a result of the violation of his constitutional rights. 2 RECOMMENDATION 3 Accordingly, in accordance with the above, IT IS HEREBY RECOMMEND that: 4 1. The petition for writ of habeas corpus be GRANTED; 5 2. The Clerk of Court be directed to enter judgement for Petitioner; and 6 3. Judgment be entered granting a writ of habeas corpus as follows: The Board shall find 7 Petitioner suitable for parole at a hearing to be held within 30 days of the order 8 adopting this decision, unless new evidence of his conduct in prison or change in 9 mental status subsequent to the November 2006 parole hearing is introduced and is 10 sufficient to support a finding that Petitioner currently poses an unreasonable risk of 11 danger to society if released on parole. In the absence of any such new evidence 12 showing Petitioner’s current dangerousness, the Board shall calculate a prison term 13 and release date for Petitioner in accordance with California law. Further, if the 14 release date already has passed, Respondent shall, within ten (10) days of the Board's 15 hearing, release Petitioner from custody. With respect to his presumptive period of 16 parole, Petitioner is to be credited for any time that has lapsed since the release date 17 calculated by the Board or when a finding of suitability at the November 2006 parole 18 consideration hearing would have become final pursuant to California Penal Code 19 sections 3041(b) and 3041.2(a)), whichever is later. 20 This Findings and Recommendation is submitted to the Honorable Lawrence J. O’ Neill, 21 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 22 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. 23 Within thirty (30) days after being served with a copy, any party may file written objections with the 24 court and serve a copy on all parties. Such a document should be captioned “Objections to 25 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served and 26 filed within ten (10) court days (plus three days if served by mail) after service of the objections. 27 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The 28 U .S. D istrict C ourt E. D . C alifornia 14 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 IT IS SO ORDERED. 4 Dated: hlked6 June 18, 2010 /s/ John M. Dixon UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia 15
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